Since the Supreme Court ruled race-based college admissions unconstitutional last June, affirmative action in all forms has come under attack.
Conservative activists have filed dozens of complaints against Fortune 500 companies alleging discrimination against White people. Long-standing federal programs created to benefit minority-owned businesses find themselves on shaky ground; on Tuesday, a Texas federal judge ordered that a 55-year-old agency must serve all races. And the resignation of Harvard’s first Black president amid allegations of plagiarism and antisemitism on campus has been claimed as a victory by critics intent on dismantling diversity, equity and inclusion (DEI) programs in academia and the private sector.
Such policies divided Americans long before President John F. Kennedy popularized the term in 1961, when he urged defense contractors to “take affirmative action” to hire workers “without regard to their race, creed, color, or national origin.” Even as these policies have fueled upward mobility for women and minority groups, they have faced intense backlash. Here’s a look at the history of affirmative action and the moments that have advanced and repelled it.
Chapter 1
1865 — 1877
First steps toward equal rights
The earliest forms of affirmative action date to Reconstruction, the turbulent period after the Civil War. Slavery is outlawed in 1865, emancipating 4 million Black men, women and children. But freedom comes with no rights or protections. Efforts to remedy this legal limbo ignite fierce pushback, including claims of discrimination against White people. In the late 1870s, Southern states start enacting Jim Crow laws that enforce segregation in public transportation, schools, parks, cemeteries, theaters and restaurants.
The Freedmen’s Bureau closes
Facing resistance from Southerners and focused on other national matters, Congress defunds the bureau.
Chapter 2
1961 — 1964
Affirmative action is born
Nearly a century later, African Americans remain largely locked out of the skilled workforce. A 1960 report by the Department of Labor finds that Black workers make 60 percent less on average than Whites. Meanwhile, the modern civil rights movement begins challenging segregation in the South, and the landmark Brown v. Board of Education case leads to the desegregation of public schools.
Kennedy issues first affirmative action directive
Responding to growing demands for racial equality, Kennedy signs an executive order requiring federal contractors to “take affirmative action to ensure that applicants are employed, and that employees are treated during employment, without regard to their race, creed, color, or national origin.”
Chapter 3
1969 — 1979
Affirmative action booms
Widespread adoption of affirmative action and equal opportunity measures leads to real-world advances. In 1969, the average income of “non-White” young, college-educated men is 98 percent of the average of U.S. workers, up from just 80 percent a decade earlier, according to one 1973 study, which attributes the improvement to a “virtual collapse in traditional discriminatory patterns in the labor market.” The wage gains coincide with an explosion in the number of Black people enrolling in colleges — 417,000 in 1970, up 83 percent from a decade earlier.
The plan faces resistance
Philadelphia contractors sue, alleging the plan creates hiring “quotas” that violate the Civil Rights Act of 1964, but they lose in court. Clarence Mitchell, chief lobbyist for the NAACP, denounces the plan as a calculated attempt by Nixon, a Republican, to drive a wedge between two traditionally Democratic factions: Blacks and unions.
Colleges adopt affirmative action
Chapter 4
1981 — 1989
Reagan’s ‘colorblind’ America
Thomas takes over the EEOC
Clarence Thomas, the future Supreme Court justice and a harsh critic of affirmative action, is named to chair the Equal Employment Opportunity Commission, which enforces workplace anti-discrimination laws. Under Thomas, cases pile up, which stymies enforcement.
Reagan fails to change federal contracting rules
Chapter 5
1990 — 1999
The battle becomes entrenched
In the 1990s, lawsuits challenge affirmative action practices in government, business and education. Some states argue affirmative action is discriminatory, and a few pursue bans in various forms. The nation’s highest courts debate whether diversity is a “public good.” Meanwhile, changing U.S. demographics prompt private companies to start considering how identity affects people’s lives at work and to explore training programs to help workers recognize “unconscious bias.”
Employment protections for disabled Americans
Key provisions of the Americans With Disabilities Act of 1990 take effect, barring discrimination against people with disabilities for the first time in the private sector.
California bans affirmative action
California voters approve Proposition 209, outlawing discrimination or preferences for “any individual or group on the basis of race, sex, color, ethnicity, or national origin” in public employment, education and contracting.
Texaco settles race-discrimination claim
Chapter 6
2000 — 2010
Divisions over diversity
State bans spur pushback across the country and keep affirmative action on the ballot. The Supreme Court repeatedly is asked to weigh in on race-conscious admissions in higher education. But as the legal tug-of-war rages, affirmative action continues to gain momentum in corporate America, where research begins to show that a diverse workforce is beneficial to the bottom line.
The University of Michigan cases
The Supreme Court weighs in on two cases involving affirmative action admissions policies: Grutter v. Bollinger and Gratz v. Bollinger. In Gratz, the court rules against an undergraduate admissions policy that relies on a formulaic point system for people in various racial groups, determining it was “not narrowly tailored.” In Grutter, the court upholds the law school’s admissions policy, citing the “compelling interest” of “educational benefits that flow from a diverse student body.”
Chapter 7
2011 — present
DEI and beyond
The DEI boom
Floyd’s murder and subsequent protests spark a rush of boardroom commitments: Companies around the world spend an estimated $7.5 billion on DEI programs and hire chief DEI officers.
(Tim Gruber for The Washington Post)
Supreme Court bars race-based admissions
Upending decades of legal precedent, the Supreme Court rules that race-conscious college admissions programs at Harvard and the University of North Carolina are unconstitutional, causing colleges and universities to shift to race-neutral policies.
What’s next?
After affirmative action is banned from college admissions, DEI becomes a lightning rod. Dozens of bills targeting DEI policies in higher education are pending across the country. Companies are facing challenges to diversity policies from shareholders and conservative activists. Some top law firms have opened race-focused fellowships to applicants of all races. The battle is likely to heat up in 2024 as companies adapt to a shifting legal landscape and DEI becomes a talking point on the presidential campaign trail.
